The Committee on Capital Punishment
Immediately upon taking office, Governor Pataki proposed restoring
the death penalty to New York. After extensive negotiations with
a number of groups that expressed concern about the idea, the proposal
succeeded, on the basis that it was, in Governor Pataki`s words,
"balanced to safeguard defendants` rights while ensuring our
state has a fully credible and enforceable death penalty statute."1
He also stressed that the bill "sets forth clear standards
to narrow the scope of the death penalty,"2 limiting it to
"the most serious crimes."3
On May 11, 1999, Governor Pataki proposed a package of amendments
to the death penalty statute.4 The package passed the state senate
in June 1999 without debate.5 Enactment of these amendments would
break the original promise of an effective but fair and limited
capital punishment law. By weakening the proportionality review
process, expanding the list of death-eligible crimes, and permitting
"victim impact" and "community impact" statements
during sentencing in capital trials, the proposals would fundamentally
upset the balance that forms the foundation of the current death
The primary effect of the proposed amendments is to remove crucial
protections that presently guard against arbitrarily differential
treatment of capital defendants both at trial and on appeal, while
at the same time the amendments would expand radically the number
of crimes punishable by death. If enacted, the proposals would work
injustice, squander money, and increase the likelihood that New
York`s entire death penalty system will be held unconstitutional.
II. SPECIFIC DEFECTS IN THE PROPOSED LEGISLATION. A.
Weakening Proportionality Review Leaves Injustice Unrectified
Inconsistent treatment of similar cases has long bedeviled the
application of the death penalty.7 In 1995, the Legislature, the
Governor, and elected officials from both parties worked to address
the possibility of arbitrariness, knowing that irrational disparities
in the use of the death penalty could poison the entire law.
As a result of these efforts, the 1995 death penalty law requires
the Court of Appeals to determine in each case whether the defendant`s
death sentence "is disproportionate to the penalty imposed
in similar cases considering both the crime and the defendant."8
The proposed amendment would limit the required review to a determination
of whether the sentence of death is disproportionate "to the
penalty imposed in other cases where a sentence of death was imposed"
(emphasis added). Thus, defendants generally would no longer be
entitled to have the death sentences in their cases compared to
other cases in which persons who committed similar crimes had received
This proposed revision would eviscerate the required proportionality
review by removing from its ambit exactly the situations raising
the most disturbing issues. Thus, for example, if Italian-Americans
convicted of killing potential witnesses were routinely sentenced
to death for that crime while members of other ethnic groups rarely
were, the proportionality review required by the Governor`s bill
would not reveal the discrepancy. Similarly, the proposed proportionality
review will not scrutinize or even reveal whether death sentences
are being imposed in a geographically disparate fashion, based on
the fortuity of where in the State the crime occurred.
The consequences of adopting the proposed limitations on the required
review by the New York Court of Appeals are easily predictable.
On an individual basis, arbitrary and indefensible discrepancies
in the outcomes of like cases will lead to injustices in specific
instances and an erosion of public confidence that fairness is being
served. On a system-wide basis, an accumulation of such results
would render New York`s death penalty statute vulnerable to a successful
challenge under Furman v. Georgia or parallel state doctrines.9
Moreover, other elements of the proposed package of amendments
would exacerbate these consequences.
B. Significantly Expanding the Pool of "Death Eligible"
Crimes Multiplies the Potential for Arbitrariness
In commenting on the present statute just before its enactment,
the Association wrote:
[W]e are concerned that the definition of what crimes are capital
should be as narrow as possible. The more broadly the bill sweeps
(e.g. by covering felony murders), the more likely it is (a) to
engender the sort of arbitrariness that the courts have repeatedly
condemned (i.e. that crimes and criminals of equal culpability
will receive unequal punishment), and (b) to be held unconstitutional.10
By significantly expanding the range of crimes potentially subject
to the death penalty, the present proposals implicate just these
concerns. The reason is simple: as the pool of "death-eligible"
defendants increases, it becomes exponentially more difficult for
the state (1) to achieve individual justice, and (2) to meet the
federal constitutional requirement that it differentiate "in
an objective, evenhanded, and substantively rational way"11
between those defendants who will receive the death penalty and
those who will not.12
Moreover, in many areas, including capital sentencing,13 the New
York State Constitution has been read to provide greater protection
for individual rights than the federal Constitution.14 This consideration
compounds the imprudence of enacting the proposed amendments.
1. Accomplices to Felony Murders
Under present New York law, a person may be convicted of murder
in the second degree (non-capital), and be sentenced to life in
prison, if he is an accomplice to certain felonies, such as robbery
or kidnapping, where someone is killed by another participant. However,
he may be relieved of liability by showing that he did not commit
or solicit the homicidal act, was not armed, and lacked reasonable
grounds to believe that any participant was armed or intended to
engage in violent conduct.15
A person may be convicted of murder in the first degree, and sentenced
to death, if during the commission of certain felonies she kills
or commands another to kill.16 The proposed bill eliminates the
requirement that to commit capital felony murder the defendant must
be the actual killer or command the actual killer.
The resulting capital murder statute would not even have the limitations
of the current law governing murder in the second degree. It would
allow anyone to be executed who participated, no matter how remotely,
in a felony where someone was killed. This would include lookouts,
drivers and others who were not even present at the murder. There
are at least two reasons not to pass such a statute.
(a) It would increase arbitrariness. Under the revised statutory
scheme, many participants in a felony that leads to a killing
could be charged, in the prosecutor`s discretion, either with
first degree murder under § 125.27(7) or with second degree
murder under § 125.25(3). It is not difficult to imagine
a situation where the shooter in one felony murder would be charged
with second degree murder while an unarmed getaway driver or lookout
in another felony murder would charged with first degree capital
murder. Such occurrences would seriously undermine the fairness
of New York State`s death penalty--particularly if the Court of
Appeals` mandatory review were changed in the way already described
in Section A, supra, so that any systemic bias in these decisions
would go uncorrected. The result would be to increase yet further
the chances that New York`s entire death penalty system would
be held unconstitutionally arbitrary under the federal or State
(b) It would be extraordinarily expensive. The change would undoubtedly
cause a major increase in the capital caseload, although it would
probably have only a negligible impact on the execution rate.
Currently, if five people are involved in a robbery and one of
them kills a person in furtherance of the robbery, capital charges
can be brought against the shooter and second degree murder charges
can be brought against the four other participants, assuming none
of those four ordered or commanded the killing. If § 125.27(7)
were changed in accordance with the proposed bill, capital charges
might be brought against all five participants. 17
But whatever public funds were expended in seeking a death sentence
in such a situation would be badly spent. Because of the attenuated
culpability of the collateral defendants, juries would be most unlikely
to render capital verdicts,18 and, because of the constitutional
concerns, the courts would be most unlikely to affirm them. The
most salient practical impact would be the diversion of resources
from parts of the criminal justice system where they are desperately
needed in the public interest.19
2. Vague Additions to Death-Eligible Crimes
The proposed amendments would add a subparagraph (xiv) to Penal
Law §125.27(1) so as to permit the imposition of the death
penalty if "the defendant committed the killing for the pleasure
of it, to experience the act of killing or to obtain membership
or status in a group or organization."
Consistent with the bedrock constitutional requirement that states
which choose to impose capital punishment must do so on the basis
of rational and defensible criteria,20 such states "must define
the crimes for which death may be imposed in a way that obviates
standardless sentencing discretion."21
The terms contained in the proposed amendments lack a clear and
objective meaning, and thus open the door to arbitrary imposition
of the death penalty. Perhaps for this reason, no other state death
penalty statute, so far as we are aware, contains similar language.
Under current law, juries must determine such matters as whether
the victim was an employee of a corrections department or whether
the defendant was serving a life sentence.22 Under the proposal,
the crimes for which a person may be sentenced to death have been
expanded and will turn on such determinations as whether a killing
was "for the pleasure of it," "to experience the
act of killing," or "obtain or maintain membership or
status in a group or organization." The conclusions that different
juries reach as to such vaguely defined and in many cases inherently
unknowable questions will necessarily lack consistency.
Indeed, a reasonable juror might believe that every intentional
murder is done in part "to experience the act of killing."
Rather than channeling the jury`s discretion, the proposed additional
provisions would thus untrammel it, leaving jurors free to impose
the death penalty in all, or virtually all, cases. It is precisely
to obviate the resulting potential arbitrariness that the Supreme
Court has specifically held, "If the sentencer fairly could
conclude that an aggravating circumstance applies to every defendant
eligible for the death penalty, the circumstance is constitutionally
infirm."23 And even an aggravating circumstance that does not
fall into this class must nonetheless not be "too vague to
provide any guidance to the sentencer."24 Thus the terms defining
the proposed new class of deatheligible crimes are probably unconstitutional.
But even if they are not, adoption of the proposed amendments
would, once more, further a pattern of arbitrary outcomes that would
undermine the ability of the New York death penalty system to withstand
ultimate constitutional scrutiny.
C. Victim Impact Testimony At Capital Sentencing is Unfair
to Victims as Well as to Defendants
The proposal would amend Criminal Procedure Law § 400.27
to allow for the introduction at the sentencing phase of a capital
murder trial of testimony concerning "the impact of the crime
on the victim`s family and the community."
Since the United States Supreme Court`s 1991 decision in Payne
v. Tennessee,25 it has not been a violation of the federal constitution
for a state to permit the introduction of victim impact testimony
in a capital case.26 But New York should adhere to the policy decision
that it made in 1995 to exclude such evidence.
Prior to its decision in Payne, the Supreme Court had consistently
prohibited the introduction of victim impact statements at the sentencing
phase of capital murder trials.27 In Booth v. Maryland, the Supreme
Court held that admission of such evidence violates the Eighth Amendment
because it makes the sentencing determination turn on inflammatory
and emotional testimony unrelated to the guilt of the defendant.28
Grief and anger are normal and understandable emotions for family
members of victims;29 however, the Booth Court pointed out that
a danger of arbitrary jury verdicts exists in situations where the
victim leaves behind no family,30 or the family members are inarticulate
or unpersuasive in expressing their loss.31 "Certainly the
degree to which a family is willing and able to express its grief
is irrelevant to the decision whether a defendant, who may merit
the death penalty, should live or die."32 The Booth Court held
that allowing admission of emotionally charged opinions for the
jury to consider "does not provide a 'principled
way to distinguish [cases] in which the death penalty was imposed,
from the many cases in which it was not.`"33 In the same vein,
in South Carolina v. Gathers, the Supreme Court reiterated that
at sentencing in a capital trial, the prosecution should be limited
to discussing matters directly related to the events and circumstances
of the crime.34
In Payne, the Supreme Court overruled these precedents to the
extent of holding that the Eighth Amendment imposes no per se prohibition
on the admission of victim impact statements and evidence.35 The
Court made it clear, however, that trial courts should proceed with
caution where statutes allow such testimony, since extensive presentations
of victim impact could render the sentencing process unconstitutional
in specific cases.36
Although Payne now allows for the possibility of victim impact
testimony at capital sentencing, it would be a grave mistake to
permit it in New York. As the Supreme Court noted in Booth, it is
quite probable that the impact will be greatly different in each
case; this ensures that the outcome of any given criminal case will
depend more on the worth the prosecutor assigns to the victim and
the impression the victim`s family makes on the jury than on the
actions of the defendant. Poor families, immigrants without families
in the United States, homeless persons, under- represented ethnic
and racial minorities, and groups whose members may lack a network
of sympathetic and charismatic survivors may offer less compelling
testimony than others. Thus, the severity of the defendant`s sentence
may vary depending on the income, education, status, race and social
acceptability of the victim or the survivors--an outcome fundamentally
at odds with the concept of evenhanded justice.37 In New York, where
a heterogeneous population makes these concerns particularly pressing,
the situation would be exacerbated by the adoption of the proposed
statute`s evisceration of mandatory proportionality review.38
In recognition of the danger to a fair capital sentencing process
inherent in admitting victim impact testimony, New York, like several
other states,39 decided in 1995, despite Payne, to exclude it. That
decision was sound. Admitting such testimony severely distracts
the jury from the task at hand, namely deciding whether in view
of all the circumstances concerning the defendant, the death penalty
In the eight years since Payne, experience in other states has
demonstrated that, once the floodgates have been opened to victim
impact testimony, there is little prospect of channeling the flow.
Evidence from a limitless range of persons, including co-workers
and even emergency rescue workers, has been admitted in the form
of poetry, handcrafts, diaries, videotapes, and gruesome postmortem
photographs.41 This sort of testimony --if available and offered--ordinarily
has an intense emotional impact on juries, and even otherwise stoic
judges.42 For that very reason, its presentation is fundamentally
at odds with the maintenance of a rational, consistent, and culpability-based
system of capital sentencing. The use of victim and community impact
statements during the sentencing phase of capital trials tends to
transform the proceedings into a trial about the victim`s character
rather than the defendant`s deserts.43 That is a transformation,
which serves only to reinforce existing social inequalities, to
the prejudice of defendants and victims alike.44 For that reason,
New York should continue to reject it.
D. Hynes v. Tomei: Solutions in Search of Problems
The death penalty statute enacted in 1995 provided that only a
jury could impose a sentence of death.45 Pleas to first-degree murder
charges were permissible, but only when the agreed-upon sentence
involved some measure of punishment other than death.46 Since the
law made no provision for the empanelling of a jury after a plea
bargain, only defendants who chose to exercise their Fifth and Sixth
Amendment rights to trial were exposed to the death penalty.
In Hynes v. Tomei,47 the Court of Appeals held unconstitutional
the portion of the New York death penalty statute that excluded
death as a possible sentence for any defendant who chose to plead
guilty to a capital offense. The Court explained that "under
the New York statute, only those defendants who exercise the Fifth
Amendment right against self-incrimination and Sixth Amendment right
to a jury trial put themselves at risk of death."48 Thus, the
Court found, these rights were unconstitutionally burdened by the
statute`s providing for different levels of punishment depending
on the manner by which the defendant`s guilt was established-- by
plea bargain, with no possibility of imposition of the death penalty,
or by jury conviction, with death as a possible punishment.49 The
Court`s solution was to hold that "a defendant may not plead
guilty to first degree murder while a notice of intent to seek the
death penalty is pending."50
If the effect of Hynes had been to eliminate plea-bargaining in
capital cases, then a legislative solution to that situation would
be warranted. However, that has not been the effect of the decision,
and there is accordingly no pressing need for legislative intervention.
Nonetheless, since part of what the bill proposes in light of
Hynes, viz., providing for jury sentencing after guilty pleas, might
be reasonable, we might support that concept if offered alone.51
Regrettably, however, the proposed legislation`s sentencing provisions
go far beyond responding to Hynes, and make extraneous changes to
the statute that would reduce the ability of juries to calibrate
the sentence to the crime and the defendant.
1. Hynes Has Not Ended Plea-Bargaining
Experience in the months since the Hynes ruling has demonstrated
that plea bargaining under the death penalty statute can take place
in a constitutional fashion. Hence, there is no urgent necessity
Under Hynes, a defendant can still, by agreement with the district
attorney, plead guilty to murder in the first degree prior to a
district attorney`s filing of a notice of intent to seek the death
penalty. The period for filing the notice of intent is lengthy (120
days after the filing of a first-degree murder indictment) and can
be extended by agreement of the parties and with the approval of
the trial court.
Moreover, even after the filing of a notice of intent, cases can
still be resolved by agreement of the prosecutor and defendant,
as evidenced by decisions of the New York state courts subsequent
to Hynes. For example, some courts have allowed pleas to first degree
murders to take place coincident with a death notice being withdrawn.52
In People v. Smelefsky,53 the court outlined a more formal procedure.
First, the defendant proffers the plea and asks the District Attorney
to withdraw the notice of intent to seek death; second, the District
Attorney expresses a willingness to do so, provided that an agreed-upon
sentence is imposed and the defendant gives a full and truthful
allocution; third, defendant undergoes the allocution; fourth, the
District Attorney consents to the plea, withdraws the notice and
joins in defendant`s motion that the plea be accepted; and, fifth,
the court grants the motion, accepts the plea, and orders it be
Further flexibility results from the fact that Hynes does not
affect a capital defendant`s ability to plead guilty to a lesser
charge, such as murder in the second degree, at any stage of the
proceedings.55 In short, since there is no evidence suggesting that
Hynes has ended, or even significantly impaired, plea-bargaining
in capital cases, there is correspondingly little urgency about
legislating a solution to a largely theoretical issue.
2. The Proposed Legislative Solution is Overbroad
That portion of the proposed legislative package directly addressing
Hynes provides a solution that accords with the common practice
of other states. Under this part of the proposal, a defendant may
plead guilty while a death notice is pending, in which case he will
proceed to a sentencing phase before a jury. As indicated, this
may be reasonable in isolation.
However, it is unfortunately not being proposed in isolation. Rather,
the package also provides that the three existing sentencing options
under the capital statute--life with parole, life without parole,
and death-- be reduced to two, life without parole and death.
In our view, allowing the jury to chose among three options is
the preferable course, and should be retained. First, it provides
for a greater level of sentencing flexibility. Second, a significant
body of research demonstrates that jurors who are told that the
defendant will be sentenced to "life" remain erroneously
convinced that he will be out on the street on parole in ten years
or less.56 By giving the jury all three options, it will understand
clearly that a sentence of "life without parole" rather
than "life with parole" really means what it says.
Accordingly, we believe that retaining the status quo is preferable
to the enactment of the proposed amendments.
However, when appropriately narrow Hynes legislation is eventually
introduced, it should correct another potential constitutional flaw
in the statute. Under current law, if a sentencing jury cannot agree,
it must be instructed that, if the deadlock persists, the judge
will impose a sentence of life with parole. See N.Y.C.P.L. §400.27(10).
At least one trial judge, believing that the purpose and effect
of this provision is to coerce deadlocked juries into voting for
death, has refused to give the instruction. See People v. Harris,
177 Misc.2d 160 (Kings Co. 1998). The appropriate legislative solution
would be to inform the jury that (a) it has the option of imposing
life with parole, (rather than, as now, having that outcome result
automatically from a failure to agree), and (b) if it is unable
to agree, the Court will impose a sentence of life without parole.
E. The Amendments Would Entail High Monetary Costs and Impose
a Heavy Burden on the Judiciary
The proposed amendments would greatly increase the number of defendants
who are eligible for the death penalty, and undoubtedly increase
the number of death sentences that are sought and imposed,57 at
least at the trial level.58 This would impose large additional costs
on New York State, both in monetary terms and in judicial resources.
Given the finite nature of the New York State budget, each dollar
spent on capital punishment is a dollar that will be taken from
another government program, including government programs with a
demonstrably greater impact on the crime rate.59 The proposed amendments
should be evaluated in this context.
1. Monetary Costs To New York Taxpayers
The costs to New York State of broadening the death penalty statute
would be high: each additional death penalty sought brings with
it significant additional expenses, even when--as is usually the
case--no execution results.60
The monetary costs associated with each additional capital prosecution
stem from three basic categories of costs: pre-trial, trial, and
appellate/ post-conviction (the least expensive).
Pre-trial costs in death penalty cases, primarily those associated
with investigation and motion practice, are significantly greater
than in noncapital cases.61 The estimated number of pretrial motions
filed in a capital case is between two and four times the number
filed in non-capital cases.62 In addition to increasing the number
of cases in which these pre-trial expenses must be borne, the proposed
changes would tend to increase the cost of motion practice in each
capital case because the changes would raise additional novel legal
Trial costs can usually be completely avoided in non-capital cases,
because the vast majority of non-capital cases are resolved by guilty
pleas and there is no trial. In a capital case in which the parties
do not reach an agreement on a non-death disposition, there is virtually
always both a guilt/innocence trial and a capital sentencing proceeding.
Capital trials are much longer, and therefore far more expensive,
than non-capital murder trials. In North Carolina, for example,
the average length of a non-capi- tal murder trial is 3.8 days,
while the average length of a capital trial is 14.6 days.64 A study
in New York in 1982 estimated that a death penalty trial would cost
approximately $1.3 million.65
If a trial does result in a death sentence, the case will nearly
always proceed through direct and collateral appeals. In fact, in
New York, each case is constitutionally required to proceed to the
New York State Court of Appeals.66 This right is not waivable.67
Although the appellate phase is the least expensive portion of the
capital process, a report from the New York Public Defense Backup
Center to the New York State Finance Committee, the Assembly Ways
and Means Committee, and the Division of Budget nonetheless estimated
that direct appeals to the New York State Court of Appeals would
cost an average of $245,720 in attorney`s fees alone.68 On the other
side, New York estimates the cost of defending direct appeals to
be $330,000 per case, without considering the extensive available
2. Additional Burdens Placed On the Judiciary
In addition to the specifically monetary costs, every increase
in the volume of capital litigation entails a disproportionate increase
in the amount of judicial attention required, thereby decreasing
the resources available for other cases of social importance.
Judges who have experienced the demands of presiding over death
penalty cases have publicly decried the enormous strain that widespread
imposition of the death penalty places on the judiciary. For example,
in Florida, which ranks third behind Texas and Virginia in the number
of executions, Chief Justice Kogan, having spent 12 years on the
Supreme Court addressing capital punishment cases, last year expressed
his alarm that although death penalty cases made up only three percent
of the court`s cases, they consumed twenty-five to fifty percent
of the Justices` time.70 "As a matter of proportion,"
he asked, "are we going to spend all of our time on the minute
portion of cases that in the long run do not impact a great number
of people?"71 Likewise, Chief Justice Dixon of the Louisiana
Supreme Court lamented in 1989 that "[c]apital punishment is
destroying the system."72
The lesson that Judge Alex Kozinski of the Ninth Circuit has drawn
from these experiences is that, to be effective, the death penalty
must be narrowly imposed. Although a vocal supporter of capital
punishment, Judge Kozinski has urged that "[i]nstead of adopting
a very expansive list of crimes for which the death penalty is an
option, state legislatures should draft narrow statutes that reserve
the death penalty for only the most heinous criminals."73
In 1995, the New York Legislature sought to follow this advice
of restraint. The proposed amendments of 1999 would do precisely
the opposite. By greatly expanding the number of crimes eligible
for the death penalty and including changes in the law that are,
at the very least, of questionable constitutionality, the amendments
would impose on the state and its localities enormous costs in monetary
and judicial resources.
Given the multitude of problems raised by the substance of the
proposals, as described elsewhere in this report, these costs are
not worth paying.
The New York death penalty statute of 1995 balanced two fundamental
principles: that death is sometimes an appropriate penalty for the
most heinous crimes, and that any system for its infliction must
be built around safeguards of fairness commensurate with the gravity
of the penalty. The one-sided statutory amendments now proposed
are inconsistent with both principles. Under the proposals, death
would be an available penalty for crimes that are far from heinous,
while existing protections for fairness--both on the individual
and system wide level--would be deliberately dismantled. The state
would thus wind up spending significantly more money to achieve
significantly less justice.
The same principles that underlie the current statute counsel rejection
of the proposed amendments.
The Committee on
Norman L. Greene, Chair
|Gregory T. Camp***
John J. Conley
Eric M. Freedman**
Edwin S. Matthews, Jr.
Daniel L. Rabinowitz
Marjorie M. Smith
Kate Birmingham Wilmore**
*Chair of the Subcommittee that prepared this Report
**Member of the Subcommittee that prepared this Report
***Did not participate in the preparation of this Report
1. Governor Pataki Signs Death Penalty into Law, http://www.state.ny.us/governor/press/
deathpn.htm (March 7, 1995). Leading legislative supporters
of the bill also emphasized that its provisions had been carefully
crafted to create a bill as fair as any in the country. See, e.g.,
New York State Senate Debate on S. 2850 (1995) [hereinafter Senate
Debates], at 1851 (Sen. Volker), 1877 (Sen. Saland), 2850 (Sen.
2. Id. at 2.
3. Administration Memorandum filed with Senate Bill Number 2850,
at 5 (March 7, 1995).
4. See S.5987 (June 16, 1999).
5. See The State of New York Bill Drafting Commission, Legislative
6. Our detailed discussion in this report focuses on the provisions
of the proposed amendments that work the most fundamental alterations
in the statutory scheme. But the proposal contains many less dramatic
elements as well, and the effect of each of them is to broaden the
reach of the death penalty. For example, under Penal Law §125.27(1)(a)(xi)
it is currently an aggravating circumstance that "the defendant
intentionally caused the death of two or more additional persons
within the state in separate criminal transactions within a period
of twentyfour months when committed in a similar fashion or pursuant
to a common scheme or plan." The proposal would extend the
period to forty-eight months, while eliminating the requirements
that the prior killings have been within the state and "committed
in a similar fashion or pursuant to a common scheme or plan."
Similarly, the bill proposes to alter current law so that the prosecution
rather than the defense will enjoy the advantage of delivering the
final summation at the penalty phase.
7. See, e.g., Legislative Modification of Habeas Corpus in Capital
Cases, 44 The Record 848, 852 (1989). Thus, for example, Charlie
Brooks and Woody Lourdes were prosecuted in Texas for a crime in
which they entered a room and one of them--no one to this day knows
which-- killed the victim with a single shot. Lourdes ultimately
received a 40-year sentence (with parole eligibility in six years),
while Brooks became the first person in America to be executed by
lethal injection. See Robert Reinhold, Groups Race to Prevent Texas
Execution, N.Y. Times, Dec. 6, 1982, at A16 (reporting that the
district attorney who prosecuted both cases argued to the Texas
pardon board that it should intervene to prevent this outcome).
8. N.Y. C.P.L. §470.30(3)(b).
9. If, taken overall, a state`s death penalty system fails to provide
meaningful mechanisms for assuring that the discrimination between
those who are to die and those who are to live is made on a justifiable
basis, the system violates the Eighth Amendment. See Furman v. Georgia,
408 U.S. 238 (1972).
10. Letter from Barbara Paul Robinson [President, Association of
the Bar of the City of New York] to Governor George E. Pataki, at
1 (March 3, 1995).
11. Zant v. Stephens, 462 U.S. 862, 879 (1983).
12. This principle, which has been repeatedly reaffirmed by the
United States Supreme Court, is the touchstone of its constitutional
review of death penalty systems. See Loving v. United States, 517
U.S. 748, 755 (1996); Lowenfield v. Phelps, 484 U.S. 231, 244 (1988).
13. See Stewart F. Hancock, Jr., et al., Race, Unbridled Discretion,
and the State Constitutional Validity of New York`s Death Penalty
Statute-- Two Questions, 59 Alb. L. Rev. 1545, 1554 (1996) (citing
People v. Smith, 63 N.Y.2d 41, 72-75 (1984)).
14. See, e.g., People v. Van Pelt, 556 N.Y.S.2d 984 (1990) (discussing
state due process protection); People v. Davis, 554 N.Y.S.2d 460
(1990) (right to counsel); People v. Kern, 555 N.Y.S.2d 647 (1990)
(holding that state`s equal protection clause extends beyond federal
one). See also John M. Shields, Constitutional Challenges to New
York State`s Death Penalty Statute, 25 Fordham Urb. L.J. 255, 259
15. See Penal Law § 125.25(3).
16. See Penal Law § 125.27 (a) (vii). It is unclear whether
even this provision is narrowly tailored enough to support imposition
of the death penalty, cf. People v. Couser, 695 N.Y.S.2d 781, 784,
285 A.D.2d 74 (4th Dep`t 1999) (defining "commands" prong
of accessorial liability in non-capital murder case, while distinguishing
heightened Eighth Amendment analysis required in capital cases),
leave to appeal granted, 93 N.Y.2d 1043 (1999), but in any event
the proposed amendments would make the situation significantly worse.
17. A significant effect of the proposed amendments is to greatly
increase prosecutorial leverage, particularly over people with incidental
roles in the crime. For example, it is not difficult to imagine
a scenario where prosecutors will be able to obtain cooperation
from the driver of the getaway car by threatening the defendant
with death, unless the defendant cooperates.
18. See Edmund v. Florida, 458 U.S. 782, 794-96 (1982) (reviewing
empirical data and concluding that the "evidence is overwhelming
that American juries have repudiated imposition of the death penalty"
for "accomplice liability in felony murders.").
19. In commenting on the 1995 legislation, we, like the Criminal
Justice Section of the New York State Bar Association, called attention
to its effect in placing an "enormous drain on already overstressed
resources." Committee on Civil Rights, The Association of the
Bar of the City of New York, Report on Legislation S. 6350, A. 9028,
at 6. The proposed amendments would make this situation worse, at
a moment when, for example, the state has already cut back on the
fees paid to capital defense lawyers, notwithstanding the unanimous
recognition by authorities across the political spectrum--including
the sponsors of the 1995 statute, see, e.g., 1995 Committee Bill
Memorandum, Bill Jacket, 1995 Ch. 1, at 36--that the provision of
competent defense counsel is critical to the effort to ensure fairness.
See Michael A. Cooper, Counsel Fees in Capital Cases: A Rush to
Execution, New York L. J., Oct. 14, 1998, at 2; see also Section
20. See supra notes 13-14 and accompanying text.
21. Godfrey v. Georgia, 446 U.S. 420, 421 (1980).
22. See Penal Law §§125.27 (1)(a) (iii), (iv).
23. Arave v. Creech, 507 U.S. 463, 471-74 (1993).
24. Walton v. Arizona, 497 U.S. 639, 654 (1990). See Tuilaepa v.
California, 512 U.S. 967, 972 (1994) (explicating these two requirements).
25. 501 U.S. 808 (1991).
26. The New York Court of Appeals has not yet ruled on the issue
under the state constitution.
27. See Booth v. Maryland, 482 U.S. 496 (1987); see also South Carolina
v. Gathers, 490 U.S. 805 (1989).
28. See Booth, 482 U.S. at 508.
29. It is precisely for this reason, and in the interests of uniform
and impartial justice across cases, that Western societies some
centuries ago transferred the function of prosecuting murders from
the aggrieved family to the state. Thus, the memorandum in support
of the proposals proceeds from an erroneous premise in claiming
that there is an "imbalance" in current law because it
precludes victim impact testimony while "enabling a convicted
killer to present a wide range of evidence in mitigation of the
crime." The comparison is flawed because the parties to the
proceeding are the state and the defendant, not the victim`s survivors
and the defendant.
30. In capital cases, the direct victim of the crime is necessarily
dead. Hence, the "victims" of a capital murder for these
purposes consist of whatever indirect victims, that is, members
of the defendant`s family or community, there may happen to be.
31. Booth, 482 U.S. at 505.
33. Id. at 506, quoting Godfrey v. Georgia, 446 U.S. 420, 433 (1980).
34. South Carolina v. Gathers, 490 U.S. 805, 811 (1989).
35. Payne v. Tennessee, 501 U.S. 808 (1991).
36. Id. at 831.
37. See Booth v. Maryland, 482 U.S. at 506-7. Furthermore, the accumulation
over time of such arbitrary outcomes will also increase the likelihood
that the New York statute will ultimately be invalidated under Furman
v. Georgia, supra note 11 or related state constitutional principles.
38. See supra Section II.A.
39. See, e.g., Sermons v. State, 417 S.E.2d 144 (Ga. 1992); State
v. Bivens, 803 P.2d 1025 (Id. Ct. App. 1991); N.H. Rev. Stat. Ann.
651:4-a (Supp. 1993); Pa. Stat. Ann. Tit. 71, P.S. § 180- 9.3
(Supp. 1994); State v. Hill, 799 P.2d 997, 999 (Kan. 1990). The
memorandum supporting the proposed amendments is thus incorrect
in stating, "New York is the only state with a death penalty
statute that prevents a victim`s family from presenting evidence
of the loss suffered by a defendant`s criminal acts."
40. Indeed, the heart of the problem with victim impact testimony
is that it leads to sentencing decisions on bases other than the
defendant`s moral culpability. Someone who stabs an unknown person
sleeping on a park bench in order to steal her money has committed
an act that is equally wrongful whether the victim turns out to
be a prostitute or the president of the local chamber of commerce.
If, on the other hand, the defendant knew of the identity of the
victim (as, for example, in Payne itself, where the defendant stabbed
the mother knowing that her young child was present), then the impact
on the victim (the child in that case) may indeed have a rational
relationship to culpability. But no change in existing New York
law is necessary for the jury to become aware of circumstances of
that kind, since they will invariably be presented as part of the
prosecution`s case at the guilt phase.
41. Wayne A. Logan, Through the Past Darkly: A Survey of the Uses
and Abuses of Victim Impact Evidence in Capital Trials, 41 Ariz.
L. Rev. 143 at *4 ,5 (1999).
42. Logan, supra note 43, at *7.
43. Suppose for example, two identical cases, in one of which the
survivor was legally married to the victim, and in the other of
which the survivor was the victim`s gay life partner. It simply
makes no sense for the defendant`s fate to turn upon the fortuity
of whether the jury has more sympathy for the one category of survivor
than the other.
44. Indeed, the two are inseparably interconnected. As an overwhelming
empirical record shows, members of racial minority groups suffer
discrimination in the capital punishment system both as defendants
and as victims. When they are defendants, they are more likely to
be prosecuted and sentenced capitally than identically-situated
whites, but when they are victims, their killers are much less likely
to be prosecuted capitally. See David C. Baldus & George Woodworth,
Race Discrimination and the Death Penalty, in James R. Acker et
al., eds., AMERICA`S EXPERIMENT WITH CAPITAL PUNISHMENT 385 (1998).
45. See CPL § 400.27.
46. See CPL 220.10(5)(e).
47. 92 N.Y.2d 613, 684 N.Y.S.2d 177 (1998), cert. denied, 119 S.
Ct. 2359 (1999). 48. Hynes, 92 N.Y.2d at 623.
49. See Hynes, 92 N.Y.2d at 624-27 (discussing federal cases).
50. Id., at 629.
51. Any such proposal would require close analysis in light of New
York State Constitution, Article 1, Section 2.
52. See, e.g., People v. Arroyo, 691 N.Y.S.2d 734 (N.Y. Co. 1999);
People v. Edwards, 690 N.Y.S.2d 404 (N.Y. Co. 1999); People v. Van
Dyne, 685 N.Y.S.2d 591 (N.Y. Co. 1999). See also New York State
Constitutional Decisions: 1998 Compilation, 15 Touro L. Rev. 1324,
1334 (1999) ("In practical terms, the capital sentence scheme
remains largely unchanged [after Hynes]. A defendant may enter a
guilty plea if the prosecutor agrees to withdraw his death notice,
so negotiated plea agreements may still occur.").
53. 695 N.Y.S.2d 689 (Queens Co. 1999).
54. A third manner of accepting pleas post-Hynes has been discussed
in a recent New York Law Journal article. According to the author,
in People v. Irwin, the court required the defendant to make a sworn
statement on the record admitting the crime. Thereafter the prosecutor
withdrew the notice of intent to seek the death penalty. The defendant
then repeated the prior statement a second time, whereupon the court
accepted the plea. See Daniel Wise, Pleas Accepted In Death Cases
After "Hynes", New York L. J., Sept. 14, 1999, at 1,7.
55. See Hynes, 92 N.Y. at 629.
56. See, e.g., Simmons v. South Carolina, 512 U.S. 154 (1994); Brown
v. Texas, 118 S. Ct. 355 (1997); William J. Bowers & Benjamin
D. Steiner, Death by Default: An Empirical Demonstration of False
and Forced Choices in Capital Sentencing, 77 Tex. L. Rev. 605, 635
57. As previously indicated, supra note 6, the package contains
many other elements, not specifically discussed in this report,
designed to have this effect, e.g., a broadening of the range of
prior convictions that the prosecution may introduce in sentencing.
58. In light of the constitutional concerns we have identified,
and the experiences elsewhere, we believe it likely that a significant
proportion of convictions would be reversed during the appellate
59. See Eric M. Freedman, The Case Against the Death Penalty, U.S.A.
Today Magazine, March 1997, at 48, 49-50.
60. As a result of this phenomenon, the excess costs in the relatively
few cases in which executions actually take place run into the millions
of dollars. For example, each execution in Florida costs the state
approximately three million dollars in incremental costs, see D.
Von Drehle, Bottom Line: Life in Prison One-sixth as Expensive,
M IAMI HERALD, July 10, 1998, at 12A, and the same estimate has
been made for New York, see Jim Dwyer, Death Penalty Doesn`t Add
Up, D AILY NEWS (New York), July 28, 1998, at 8.
61. See Robert M. Bohm, The Economic Costs of Capital Punishment:
Past, Present, and Future, in Acker, supra note 46, at 437.
62. See Justin Brooks and Jeanne Huey Erickson, The Dire Wolf Collects
His Due While the Boys Sit By the Fire: Why Michigan Cannot Afford
to Buy Into the Death Penalty, 13 T.M. COOLEY L. REV. 877, 889 (1996)
(citing New York State Defender`s Ass`n Inc., Capital Losses: The
Price of the Death Penalty for New York State, 12 (1982)).
63. Cf. Federal Death Penalty Cases: Recommendations Concerning
the Cost and Quality of Defense Representation, prepared by the
Subcommittee on Federal Death Penalty Cases, Committee on Defender
Services, Judicial Conference of the United States, 6 (1998) (describing
the complexity and cost of motion practice in capital litigation
and explaining that part of that expense results from the many novel
legal issues concerning the constitutionality and interpretation
of the new federal death penalty laws).
64. See Brooks and Erickson, supra note 64, at 891 (citing Phillip
J. Cook & Donna B. Slawson, The Cost of Processing Murder Cases
in North Carolina, 61 (1993)).
65. See New York State Defender`s Ass`n Inc., Capital Losses, supra
note 64, at 18; see generally Brooks and Erickson, supra note 64,
at 889 The Dire Wolf Collects His (citing The Report of the Governor`s
Commission on the Death Penalty, An Analysis of Capital Punishment
in Maryland: 1978 to 1993, 148 (1993)). 66. See N.Y. Crim. Proc.
Law § 470.30(2) (McKinney 1995).
68. See Martin Kasten, An Economic Analysis of the Death Penalty,
U. AVENUE UNDERGRADUATE J. OF EC O N. (1996) (citing Jonathan E.
Gradess "Memorandum to Joseph Jaffe, Chairman, New York State
Bar Association Criminal Justice Section," March 3, 1989).
69. Prosecution costs in death penalty cases are often much higher
than defense costs. For example, the average total cost of prosecuting
a federal death penalty case, not including nonattorney investigative
costs or the costs of expert and other assistance provided by law
enforcement agencies is $365,000 and the average cost of payments
to private retained experts is $20,269 per prosecution, while the
average cost of defending a federal capital case is $218,112. See
Federal Death Penalty Cases, supra note 65, at 7.
70. See Jenny Staletovich, Justice Raising Voice to Bury Death Penalty,
PALM BEACH POST, Jan. 19, 1998 at 1A; Peter Wallsten, Death Penalty
Pragmatism, ST. PETERSBURG TIMES, Feb. 22, 1998, at 1D.
71. Peter Wallsten, Justice Criticizes Death Penalty, ST. PETERSBURG
TIMES, Jan. 1, 1998, at 1A.
72. David Kaplan, Death Mill USA, N AT`L L.J., May 8, 1989, at 38.
73. Alex Kozinski, For an Honest Death Penalty, N E W YORK TIMES,
March 8, 1995, at A21.